assorted blogging by Sage Ross

On copyright infringement and “theft”

Yesterday I went to an open discussion about SOPA with Jason Altmire, who represents my district. He came out against SOPA at the end of the event. But one thing that bugged me was that just about everyone used “theft” as a synonym for copyright infringement. And this “theft” by rogue websites in China and southeast Asia, everyone supposedly agrees, is a serious problem, even if SOPA isn’t the right answer.

Consider a typical case where somebody downloads a Hollywood movie to watch, without paying for it. Taking this movie wasn’t authorized by the copyright holders. But the copyright holders still own it. They still have all their copies, and they are still free to make more. They can distribute and license it as they wish. They can make sequels and spin-offs and t-shirts and bobble-heads.

What would you call that? I would call it copyright infringement, but I wouldn’t call it theft.

Now imagine a different scenario. A work you have is taken from you. And once it’s been taken, you can no longer make copies. In fact, you have to get rid of all the copies you have. When it was yours, you could make copies, send them to your friends, make derivatives, use it as a jumping off point for new works. You could do with it as you pleased. Now, you can’t do any of that without the permission of the person who took it from you.

Would you call that theft?

I would call it Golan v. Holder. Wikimedians are having to get rid of thousands of public domain works from Wikipedia and Wikimedia Commons that used to be public domain in the U.S.—used to belong to the public, to use and copy and build from—which were put back into copyright by Congress. And the Supreme Court just decided that in fact, that’s just fine.

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3 thoughts on “On copyright infringement and “theft””

Actually, they are both theft, strictly speaking. In the first scenario, you are technically robbing the copywrite owners of revenue in two ways. Your free download means they don’t receive the royalties from your purchase, and the availability and use of their pirated material devalues the worth of the copywrite they own.

In the second scenario the crooks also happen to make and their cromies interpret the laws, and can therefore declare their actions just even though it doesn’t make a lot of sense under any real scrutiny. Neither is right, both are theft, and SOPA isn’t the way to deal with them.

I’m not trying to justify copyright infringement, which certainly can harm creators in many cases. But it’s a lot more complicated than “theft” in any conventional sense.

Take an extreme example: if every single person in the world got a bootleg copy of Peter Jackson’s Lord of the Rings movies. This would no doubt massively reduce the market for the DVD set. But many more people would have seen it than ever would have paid to do so. The forthcoming movies of The Hobbit would be much more profitable, as would the careers of Jackson, Elijah Wood, and the rest. And the extended edition DVD set would probably start selling like hotcakes.

Copyright infringement can cause economic harm, because it changes the market environment. So does leaving a negative review on Amazon. But those lost hypothetical sales are not the same as theft.

I’ve experienced an interesting counterexample. I was given a pirate copy of “Minecraft” by my younger brother. Having tried the game and enjoyed it, I bought the game and encouraged him successfully to do the same.

Playing on-again off-again, my actions have resulted in at least five sales of the game. I’ve learned since that Minecraft’s creator has no problems with the pirate version, to the point that he’s suggested temporary piracy to someone whose budget couldn’t justify purchasing the game.

While I can’t and won’t generally condone piracy, it is certainly not “theft”. That I think that the “Big Content” companies are in fact shooting themselves in the foot by using that reductive and extreme label. By taking measures against piracy, they alienate users rather than befriend them. One case where I’d argue that piracy is justified is for a few modern games with DRM so severe that the game must connect to the publisher’s Internet servers each time it starts up, making completely offline play impossible. Pirate versions of these games bypass that restriction, meaning that it is *in the interest* of a good faith user to first buy the game, and then also pirate it to avoid frustrating use restrictions.

There’s a missed opportunity for these publishers: identify those who have pirated their content, wait for the right time, and then offer them an exclusive sale. Encourage them to buy the content: even at a reduced price the publisher will earn much more money than by labelling those consumers “thieves” or “pirates”. As the saying goes, “you catch more flies with honey than with vinegar”.*